An S38 agreement contains clauses that require landowners, developers and the Council to certain obligations and responsibilities to ensure the adoption of an acceptable highway standard. As part of its planning system, the government has… A complete set of drawings and calculations is required for the technical element of submitting the S38 application, as outlined in the technical approval section. Technical authorization can only be granted when the surveillance fee has been paid and the S38 contract is in effect. After adoption, the road authority undertakes to ensure the maintenance and maintenance of the road in accordance with the agreement provided for in point 38. This date will be decided by the agreement. The owners are informed that, in the absence of such an agreement, they should not undertake any work and that any construction could affect the future adoption of the country roads concerned. The government has introduced new laws to renew planning authorizations that have expired… Dyson LJ found that the term “maintaining the highway at public expense” in plain language states that the road authority is held responsible for public law for the maintenance of the highway, but does not impose the manner in which the Authority is required to respect this responsibility. The authority may perform the maintenance itself or enter into an agreement for a proponent to perform the maintenance after acceptance.
However, if a developer does not owe an obligation, the road authority is responsible. In practice, motorway authorities are reluctant to accept changes to their pro forma agreements, and legal negotiations to explicitly limit current liability can be highly controversial, especially when standard agreements leave such liability indefinite (and in fact unlimited). The Court of Appeal may have been a little too optimistic to think that the parties are “reasonably negotiating” as a general rule.  Sections 44, 53 and 278. In short, Section 44 provides that a person who is responsible for the maintenance of a highway under a particular order or a term, containment or a requirement may agree to maintain highways that can be made public. Section 53 provides that a court can issue an order that erases a person`s liability for the preservation of the highway. Section 278 provides agreements for the completion of motorway works by the motorway authority at the expense of developers. In paragraph 278, paragraph 3, it is expressly stated that such an agreement may provide for payments for the maintenance of the work to which the agreement relates. In terms of the sale of the land, the arriving occupants want to ensure that they are not responsible for the maintenance of the highway.
Post Redrow Homes, Section 38 Agreements should be considered more carefully as part of the usual due diligence process. Contractual guarantees should cover any current and future liability under Section 38 of the agreements. Consideration should be given to whether management companies should be created to take on such a responsibility.